F-1 Students & Unlawful Presence

F-1 visa is a great visa for students who want to come to the U.S. and attend university, college, high school, elementary school, or other academic institutions.

F-1 students are generally admitted to the U.S. for Duration of status (“D/S”). This means that their I-94 form does not have an end date by which they need to leave the U.S., instead they are allowed to stay in the U.S. as long as they comply with all the terms and conditions of their status (as long as they maintain their non-immigrant F-1 status).

Having no end date on their I-94 may be tricky and confusing for some students, as they may not realize that once their program is over and they are not staying in the U.S. doing OPT or changing status, they need to leave the U.S. within a 60-day grace period.

So what happens if students in F-1 status overstay their status?

In 2018, USCIS issued a Memorandum that drastically changed how USCIS was determining unlawful presence for F-1 students. Under the 2018 Memo, F-1 students began accruing unlawful presence due to failure to maintain their status on the earliest of any of the following:

• The day after the F-1 student no longer pursues the course of study or the authorized activity, or the day after he or she engages in an unauthorized activity;
• The day after completing the course of study or program (including any authorized practical training plus any authorized grace period)
• The day after the Form I-94 expires, if the F-1 student was admitted for a date certain; or
• The day after an immigration judge orders the alien excluded, deported, or removed (whether or not the decision is appealed).

It is important to briefly go over the concept of unlawful presence to better understand the consequences the 2018 Memo could have on students. If you accrue more than 180 days of unlawful presence , you will face a 3-year bar of coming to the U.S. If you accrue more than 1 year of unlawful presence, you will face a 10-year bar of coming to the U.S.

You finished your school on May 1, 2019 and you did not apply for OPT. You stayed in the U.S. as you wanted to travel a bit after your studies, and you did not know you had to leave the U.S. within your 60 day grace period. You stayed in the U.S. about 3-4 months after your grace period. Under the 2018 Memo, you would have started accruing unlawful presence the day after your grace period ended, so you would have around 3-4 months of unlawful presence. Fortunately, this would still be below the 180 days so you would not face the 3-year bar, but you would still have to disclosed the 3-4 month overstay in your future visa petitions. However, if you stayed longer than 180 days after your grace period, under the 2018 Memo, you would be facing a 3 year bar of coming to the U.S.

On Feb. 6, 2020, the U.S. District Court for the Middle District of North Carolina issued a nationwide injunction enjoining USCIS from enforcing the above 2018 Policy Memorandum. Since February 2020, USCIS has been again applying the prior policy guidance on this topic, which was in effect prior to the 2018 Memo.

Under the current guidance, if you fail to maintain your lawful status as an F-1 student, you will begin accruing unlawful presence on the earliest of the following:

• The day after USCIS denied a request for immigration benefit, if USCIS made a formal finding that you violated your nonimmigrant status while adjudicating a request for another immigration benefit, or
• The day after immigration judge orders that the student should be excluded, deported, or removed (regardless of whether the decision is being appealed).

As you can see, under the current guidance, there has to be a finding/determination by USCIS or a judge, and only after this determination you would start accruing unlawful presence (accruing unlawful presence is no longer automatic as it was under the 2018 memo).

In the hypo above, unless at some point there was a formal finding by USCIS that the student violated his/her status or a finding by an Immigration judge, the student would have to disclose this overstay on any future visa applications, but this would not be considered an unlawful presence and the student would not be subject to the 3/10 year bars.

Please note that there is a big difference between unlawful presence and out of status/overstay and it’s extremely important to distinguish these terms.

Possibly, depending on which green card category you are applying under. For example, if you are applying under certain employment based green card categories, you may be able to qualify for a 245(k) waiver.

The 245(k) waiver can excuse certain violations such as failure to maintain lawful status in the U.S., unauthorized employment, or violation of the terms and conditions of your admission for a maximum of 180 days in aggregate. If you are eligible for the 245(k) waiver, USCIS will only look at your violations since your most recent lawful admission to the U.S. In the hypo above, even if you overstayed for more than 180 days but you re-entered the U.S., only the violations since your most recent entry would be considered.